ASSET PURCHASE AND SALE
AGREEMENT
This Asset
Purchase and Sale Agreement (the “Agreement”) is made
and executed as of the 17th day of July, 2009, by and between
NeoMedia Technologies, Inc., a company organized under the laws of
the State of Delaware, United States of America, with its principal
offices located at Two Concourse Parkway, Suite 500, Atlanta, GA
30328, USA ( the “Seller”) and Greg Lindholm, an
individual residing in, and subject to, the laws of the State of
Florida, United States of America, with his principal place of
business located at 586 Lakewood Drive, Oldsmar, FL 34677 (the
“Purchaser”) (collectively referred to herein as
“Parties” or individually as
“Party”). This Agreement shall be effective
July 16, 2009 (the “Effective Date”).
WITNESSETH
WHEREAS, Seller
owns or controls, or both all rights to certain intellectual
property and related technology and know-how, known collectively as
the Wang Interchange Source Processor (“WISP”), which
is an integrated set of software utilities that facilitates the
complete migration of Wang VS applications to UNIX and Windows
(collectively, the “Assets”), all of which Assets are
listed in Schedule 1 attached hereto; and
WHEREAS,
Purchaser wishes to purchase the Assets and Seller is willing to
sell the Assets in exchange for a Royalty as described
below.
NOW, THEREFORE,
in consideration of the premises and the mutual covenants and
agreements contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged by each of the Parties hereto, the Parties agree as
follows:
ARTICLE
I. Definitions
1.1 “Confidential
Information” shall mean all information disclosed to a Party
(“Receiving Party”) by the other Party
(“Disclosing Party”) in connection with this Agreement
that is conveyed (a) in written, graphic, or other tangible form
and conspicuously marked “confidential”,
“proprietary” or in some other manner to indicate its
confidential or proprietary nature; or (b) orally, provided that
such information is designated in writing as confidential or
proprietary within thirty (30) days of such oral disclosure.
Additionally, subject to Article VI below, the following
information shall be deemed Confidential Information even if not
conspicuously marked “confidential” or
“proprietary”: all know-how in whatever
form, documentation, formulations, algorithms,
compilations, manuals, manufacturing processes, business methods,
computer programs, symbols, or other know-how and supporting
material related to the research, development, manufacture,
marketing, sale, copyrights, trademarks, patents, technology, trade
secrets and internal management systems relating to the Assets,
whether conveyed verbally, in writing, on diskette, on tape or
other media.
1.2 “Documentation”
shall mean all elements of Know-how, Software, customer agreements,
service history and other Licensed Technology that are in writing
or other tangible form.
1.3 “Know-how”
shall mean all trade secrets and Confidential Information,
including process or production information, formulas, information
on compositions of matter, techniques or methods related to the
manufacture, package, assembly, marketing, sale or distribution of
the Licensed Products, Know-how or Licensed Technology.
1.4 “Licensed
Products” shall mean any product that is manufactured, used,
marketed, distributed or sold by Purchaser or any of its
Subsidiaries or affiliates using any of the Licensed Technology or
Know-how.
1.5 “Licensed
Technology” shall mean, individually and collectively, the
Know-how and Confidential Information which are sold pursuant to
the terms of this Agreement, and are necessary for the marketing,
sale or distribution of the services provided by the Assets, and
which are being sold by the Seller to the Purchaser pursuant to
this Agreement.
1.6 “Licensed
Trademarks & Copyrights” shall mean the Seller trademarks
of “WISP” and other related Seller trademarks,
tradenames and copyrighted material associated with any and all
Products made with the Licensed Technology, Licensed Patents and
Know-how.
1.7 “Subsidiaries”
shall mean those corporate entities in which a Party directly or
indirectly owns 50% or more of the voting securities of such
corporate entities, or is otherwise related to a Party through 50% or more of common
ownership of the stock by the same parent.
1.8 “Customers”
shall mean the listed persons and business and governmental
entities who, as of the date of this Agreement, purchase services
provided by means of the Assets (the “Services”) as set
forth in Schedule 2 attached hereto, successors, assigns or
transferees of such persons and business and governmental entities,
and all other persons or business and governmental entities who may
hereafter become a purchaser of the
Services. “Customer” shall mean an
individual person or business or governmental entity, and its
successors, assigns or transferees who, as of the date of this
Agreement or who thereafter, purchases the Services.
ARTICLE
II. SALE OF ASSETS
2.1 As
of the Effective Date, Purchaser shall purchase and accept, and
Seller shall sell, assign, transfer, convey and deliver to
Purchaser, all of Seller’s rights, titles and interests in
and to the Assets. As of the Effective Date of this
Agreement, except as may otherwise be set forth herein, Purchaser
shall have all rights to, responsibilities for, obligations of, and
liabilities related to the Assets and Seller shall be relieved of
all such rights, responsibilities, obligations, and
liabilities.
2.2
Seller shall assist Purchaser in transitioning Customer
relationships from Seller to Purchaser. The Parties
shall jointly draft and send to each Customer a letter advising the
Customer of the fact that Purchaser will now be responsible for all
future relations with Customers related to the Services and how to
contact Purchaser. In the event that, after the
Effective Date, a Customer contacts Seller about any issue related
to the Services, or to the Assets or sale thereof to Purchaser,
Seller shall refer such Customer to Purchaser. In the
event any other person or entity makes an inquiry of Seller about
purchasing the Services, Seller shall refer such person or entity
to Purchaser.
2.3
Upon the Effective Date, Purchaser shall be responsible for billing
of all Customers. To assist Purchaser in such billing,
Seller shall make available to Purchaser, upon Purchaser’s
request and at Seller’s place of business, copies of its
billing record for the Customers. In the event a
Customer remits to Seller, after the Effective Date, a payment due
to Purchaser, Seller shall, within thirty (30) days, forward such
payment in full to Purchaser. Seller shall have the sole
right to any payments received by Seller prior to the Effective
Date and shall have no obligation to forward such payments to
Purchaser.
2.4 As
of the Effective Date, Purchaser shall be responsible for providing
the Services to the Customers, including but not limited to
responding to and rectifying any Customer service claims or
complaints, whether the matter that gave rise to such claim or
complaint occurred prior to or after the Effective Date. WISP
support services are only provided to Customers who purchase and
keep current a WISP Maintenance and Support Agreement, nothing in
this agreement changes this or requires Purchaser to provide
support beyond the level stated in the WISP Maintenance and Support
Agreement.
2.5 Purchaser
shall not represent to any entity or person, in any manner, that it
represents, acts on behalf of, is an agent for, or is otherwise
authorized to bind or act on behalf of Seller.
2.6 As
of the Effective Date, Purchaser shall have the exclusive right to
prosecute, maintain, defend and enforce the Assets, entirely at its
own cost and discretion and Seller shall have no obligation to take
any action for the prosecution, maintenance, defense or enforcement
of the Assets in any way.
2.7 Except
for the Assets sold under this Agreement, Purchaser is not granted
any license or other rights relating to the products or patents or
other intellectual property rights of the Seller whether by
implication or otherwise.
2.8 As
of the Effective Date, the Parties shall terminate that certain
other agreement between them entitled “Consulting
Agreement” and dated March 24, 2008. Seller shall
pay Purchaser all amounts due Purchaser under the Consulting
Agreement as of the date of termination and Purchaser shall provide
all services required of it up through the date of termination of
the Consulting Agreement.
ARTICLE
III. REVENUES AND ROYALTY
3.1 Purchaser
shall be entitled to all payments received from Customers on or
after the Effective Date resulting from the sale, lease, licensing,
maintenance or other services provided by means of the Assets (the
“Revenues”). In consideration for its
acquisition of the Assets, Purchaser shall pay to Seller a royalty
of twenty percent (20%) of the Revenues for three (3) years
following the Effective Date (the
“Royalty”).
3.2 In
the event that changes or upgrades will need to be made to the
Assets in order for the Services to continue to perform in a
satisfactory manner, Purchaser shall make such changes in a manner
and time frame as required by and specified in a customer's extant
WISP Maintenance and Support Agreement. Purchaser shall
be solely responsible, at its sole expense, for making any such
changes or upgrades. Purchaser is not required to make any changes
for or provide any services to any customer who does not have an
extant WISP Maintenance and Support Agreement.
3.3 Payment
of Royalties shall be made on a monthly basis for the three (3)
year period following the Effective Date. Each payment
shall be made within thirty (30) days after the end of each month
and shall include a summary statement of the Revenues and the
Royalty calculation. In the event of termination of this
Agreement, a final Royalty payment shall be made within thirty (30)
days following such termination.
3.3 All
payments owed to Seller pursuant to this Article III Revenues and
Royalty shall be made in U.S. Dollars by check sent by U.S. mail to
the last known address of the Seller or by other mutually agreed
upon method.
ARTICLE IV.
WARRANTIES
No warranties,
express, implied or statutory are made with respect to the Assets
or any part thereof except as expressly set forth in this
Section.
4.1. The
Seller represents and warrants that: (i) the Seller is duly
authorized and has the requisite power and authority to enter into
this Agreement and to perform its obligations hereunder; (ii) the
Seller has the right to sell the Assets; (iii) the execution,
delivery and performance by it of this Agreement will not violate
any provision of any applicable law or regulation presently in
effect or any provision of its constituent documents or result in a
breach of any agreement, obligation or restriction by which it is
bound; (iv) this Agreement is a legal, valid and binding obligation
of Seller, enforceable against it in accordance with its terms and
conditions; (v) it is not under any obligation to any person,
contractual or otherwise, conflicting or inconsistent in any
respect with the terms of this Agreement or which would impede the
diligent and complete fulfillment of its obligations hereunder; and
(vi) the Assets sold by it hereunder are provided on an “AS
IS” basis and subject to the further limitations set forth in
Section 4.3 below.
4.2 Purchaser
represents and warrants that: (i) Purchaser is duly
authorized and has the requisite power and authority to enter into
this Agreement and to perform its obligations hereunder; (ii)
Purchaser has conducted sufficient due diligence investigation with
respect to the Assets in all respects, including but not limited
to, the legal status and the technical effectiveness thereof; (iii)
the execution, delivery and performance by it of this Agreement
will not violate any provision of any applicable law or regulation
presently in effect or any provision of its constituent documents
or result in a breach of any agreement, obligation or restriction
by which it is bound; (iv) this Agreement is a legal, valid and
binding obligation of Purchaser, enforceable against it in
accordance with its terms and conditions; (v) it is not under any
obligation to any person, contractual or otherwise, conflicting or
inconsistent in any respect with the terms of this Agreement or
which would impede the diligent and complete fulfillment of its
obligations hereunder; and (vi) the Assets purchased by it
hereunder are purchased on an “AS IS” basis and subject
to the further limitations set forth in Section 4.3
below.
4.3 The
provisions of Article V allocate the risks under this Agreement
between the Seller and the Purchaser, and the respective benefits
and obligations described herein reflect such allocation of risk
and the limitation of liability agreed to under this
Agreement. Nothing in this Article IV shall be construed
as: (i) a warranty or representation by Seller as to the validity
or scope of any component of the Assets; or (ii) a warranty or
representation that anything made, used, sold or otherwise disposed
of under this Agreement does not or will not infringe the
intellectual property rights of third parties; or (iii) a
requirement that either Party shall file any patent application,
secure any patent or maintain any patent in force; or (iv)
conferring a right to use in advertising, publicity or otherwise
any trademark or trade name of the other Party; or (v) granting by
implication, estoppel or otherwise any License or rights under any
Patent, technology, trademark or copyright other than the Licensed
Patents, Know-how and Licensed Trademarks &
Copyrights.
THE WARRANTIES
EXPRESSLY SET FORTH IN THIS SECTION ABOVE ARE EXCLUSIVE AND IN LIEU
OF ALL OTHER WARRANTIES, AND THERE ARE NO OTHER REPRESENTATIONS OR
WARRANTIES OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. SELLER SHALL NOT HAVE ANY LIABILITY OF ANY
NATURE WITH REGARD TO THE VALUE, ADEQUACY, FREEDOM FROM FAULT OR
INFRINGEMENT, QUALITY, EFFICIENCY, SUITABILITY, EFFECTIVENESS,
ACCURACY, CHARACTERISTICS, VALIDITY, SCOPE OR USEFULNESS OF THE
ASSETS, INCLUDING BUT NOT LIMITED TOANY LICENSED TECHNOLOGY,
KNOW-HOW OR LICENSED TRADEMARK & COPYRIGHT. IN NO
EVENT WILL THE SELLER OR ANY OF ITS SUPPLIERS, SUBSIDIARIES,
EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS BE LIABLE FOR: (1) LOST
PROFITS, LOST DATA OR LOST USE, OR ANY OTHER INCIDENTAL OR
CONSEQUENTIAL DAMAGES, OR FOR ANY INDIRECT, SPECIAL OR PUNITIVE
DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT
(INCLUDING NE
